Capitulation in The Hague: The Marshall Islands Cases

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When questions around nuclear weapons are brought before the ICJ, we don’t expect easy answers – too far apart are the realities of power politics from any defensible conception of what the world ought to look like, and international law is caught in the middle. In the 1996 Advisory Opinion on the legality of the use of nuclear weapons, the Court gave this fundamental tension an expression, even if it came up with answers (or non-answers) that left many dissatisfied. In this week’s judgment in the cases brought by the Marshall Islands – on the obligation to pursue nuclear disarmament – it does not take up the challenge at all. It instead evades the problem, and hides its evasion behind a façade of formalist legal reasoning.

As Christian Tams has already sketched in his first reaction to the judgment on this blog, the cases were dismissed on the grounds that no ‘dispute’ existed between the Marshall Islands and the UK, India and Pakistan. This is novel not only because never before has an entire case been dismissed on these grounds by the ICJ, but also because it stretches the interpretation of a ‘dispute’ beyond previous understandings: a dispute now requires some form of ‘objective awareness’ of the respondent state prior to the filing of the case. It is true that the requirement of an existing dispute has gained greater relevance in recent years, has played a consequential role in a number of cases, and has taken on a somewhat wider meaning than in earlier jurisprudence. But as the dissenting opinions highlight, it had never been understood in such strict terms, and in previous cases – especially Belgium v. Senegal in 2012 – it had served to delimit the scope of the proceedings before the Court, but had not affected the existence of a justiciable dispute in the case as such. It is also not clear what the rationale of a strict application of the requirement of a dispute would be – why should the Court not deal with cases in which a dispute was latent or vaguely present and only gained legal specificity with the filing of the court application? After all, as the Court notes, neither a prior notification or diplomatic negotiations are normally necessary for a case to be admissible. And even practically, it is not clear what effect a strict interpretation would serve if, as some of the judges in the majority note, the case can be brought again later – now turned into a ‘dispute’ through the prior, failed proceedings. In any event, in the present case, the Marshall Islands had gone on record in diplomatic conferences denonuncing the failure of nuclear-weapon states to fulfill their obligations for nuclear disarmament – would we really need more to establish the existence of a dispute? The Court notes that these statements failed to specify ‘particulars regarding the United Kingdom’s conduct’ – as if much needed to be specified about a glaring omission, or about the very fact that the UK is a nuclear-weapon state.

Why, then, did the majority – the slimmest of possible majorities in the UK case, established only through the president’s casting vote – stretch the requirement of a ‘dispute’ so far? And why did even judges who had been highly critical of earlier extensions of the concept – like President Abraham or Judge Owada – support the further step in this case? We cannot know the reasons (Abraham notes the weight of precedent after those earlier cases), but a glance at the composition of the majority gives us at least an indication. Among the eight judges who find a dispute lacking, no less than six are nationals of nuclear-weapon states (France, the US, the UK, Russia, China and India); the remaining two come from countries (Japan and Italy) that have benefitted greatly from the protection offered by the nuclear weapons of the US. The eight judges in the minority are all nationals of countries that do not possess nuclear weapons, most of them from the global South. An accident? It is certainly surprising that positions on how to interpret the notion of a ‘dispute’ would be correlated  with the level of nuclear armament of one’s home country.

If the dispute over the meaning of ‘dispute’ is only a front for the real divisions on the Court, the manoeuvre itself – throwing the case out before it reaches the merits stage – may strike many as strategically smart for a vulnerable court. The ICJ has found it difficult to confront great powers in recent years, and it might well fear that too harsh a stance could drive away the few powerful states that still accept its jurisdiction under the optional clause. The Court’s move in this case certainly seems to have kept the United Kingdom safe from challenge in this case: should the Marshall Islands consider a resubmission, they now face another jurisdictional hurdle. In late 2014, in wise anticipation of the present judgment, the UK has modified its acceptance of the Court’s jurisdiction by excluding disputes which are ‘substantially the same as a dispute previously submitted to the Court by the same or another Party’. (it remains to be seen, though, whether this protects the UK also when the previous case was not a ‘dispute’.)

The Court’s move has thus probably staved off (for now) a situation in which yet another influential country leaves the optional-clause system out of frustration with a judicial finding, as France and the US did in the 1970s and 1980s. But can open deference to powerful states rescue an institution that derives its authority, in part, from being seen as impartial, and as speaking law to power? When the ICJ had come under the suspicion of being merely a tool of the powerful before, after the South West Africa cases in the 1960s, it took the Court decades to rebuild its damaged reputation. We don’t know how long it will take this time around. But perhaps the Court actually wants to keep its reputation limited and we should read the present judgment – possibly in line with the 1996 advisory opinion, the 2010 advisory opinion on Kosovo, or the 2011 judgment in the Georgia/Russia case – as a request to be realistic and not to bring the really big problems before the Court at all. Such a stance may reflect pragmatic caution but one may doubt whether a court that so easily capitulates in the face of all-too powerful interests can redeem its aspiration to be a ‘world court’ properly so-called.

I wish to thank Lorenzo Palestini for an illuminating discussion of the judgments.

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Eugenio Carli says

October 11, 2016

Dear Prof. Krisch,
thank you for your interesting views about the recent judgement issued by the ICJ.
I'm an Italian post-doc student in International and EU law.
I generally agree with your points and consider the judgement basically a "political" one which can undermine the ICJ's credibility as a real world court.
I just want to put on the table another possible interpretation of the "no dispute solution".
In an era where international law is often accused of not being really juridical, the highly formalistic approach adopted by the majority of judges could be read as an attempt to convey more "legal certainty" to it, by strictly - even if probably wrongly - applying the relative norms.
Clearly, I don't think international law is in need of that, and - even if it were - I believe that it's certainly not the right way to do that. Legal authority can't be acheived by formalism, but by flexibility and the attentive balancing of values at stake, especially within an international forum.
In this case, the ICJ has taken many steps back in performing its function of ensuring international justice.